The following e-filed documents, listed by NYSCEF document number (Motion 005) 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 131, 132, 133, 134, 135, 136, 137, 138, 139, 140 were read on this motion to/for JUDGMENT — SUMMARY. This is a personal injury action brought by Lyna O.-F. on behalf of her minor child S.F., who was injured in a building owned by defendant New York City Housing Authority. S.F. was four years old at the time of the accident. The complaint alleges that she was sleeping in the bedroom of Apartment 10G in a NYCHA building located at 500 East Houston Street in New York County. Upon awakening, S.F. left her bedroom and went into her mother’s bedroom, in which a steam pipe which extended horizontally from the radiator across the wall. She then came into direct contact with the pipe, which was allegedly nearly 235 degrees Fahrenheit, causing her to suffer second-degree burns on her left hand and arm. There were no eyewitnesses to the scene when S.F. made contact with the pipe, although a relative responded to her screams of pain. Plaintiff sued defendant New York City Housing Authority. Plaintiff asserts that defendant violated the New York City Building Code, by failing to insulate the subject pipe, which resulted in the victim’s injuries. (See New York City Admin. Code §27-809 [requiring insulation of pipes in certain circumstances].) Plaintiff also contended that defendant is liable as a matter of common-law negligence, essentially for running hot water through an uninsulated steam pipe at an excessive temperature. NYCHA now moves for summary judgment, arguing that it lacked a Building-Code-based duty to insulate the pipe, and that it is not liable in common-law negligence either. The current City Building Code came into effect in 1968. NYCHA asserts that the building in question was built in 1949 and that no major building renovations have been conducted since that time. As a result, NYCHA contends, the premises are subject only to the standards of the 1938 Building Code, which expressly do not require insulation of pipes. (See New York City Admin. Code §27-111 [governing retroactive effect of 1968 Building Code]; Isaacs v. West 34th Apts. Corp., 36 AD3d 414, 416 [1st Dept 2007].) A party seeking summary judgment must make a prima facie showing that it is entitled to judgment as a matter of law by proffering sufficient evidence to demonstrate the absence of any material issue of fact. If the movant fails to make this showing, the motion must be denied (See Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986].) Once the movant meets its burden, then the opposing party must produce evidentiary proof in admissible form sufficient to raise a triable issue of material fact. (See Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].) Defendant’s summary-judgment papers include an affidavit from Laurence Wilensky, a NYCHA official, averring that the building in question is part of the Wald Housing Development, and that the Wald Housing Development was fully constructed as of 1949. (See NYSCEF No. 122, at 2-3 [3-4].) The Wilensky affidavit attaches a document from NYCHA records that lists the “Wald” development as having been completed on October 14, 1949. (Id. at 4.) Defendant also submits affidavits from other NYCHA officials averring that the building has not been substantially renovated since that time. (See NYSCEF Nos. 120-121.) This evidence is sufficient to establish prima facie that the building in question was subject to the 1938 Building Code rather than the 1968 Building Code — and thus that NYCHA did not owe a statutory duty to insulate the pipe on which S.F. was burned. And plaintiff does not offer any contrary evidence in opposition. Thus, any duty owed by NYCHA with respect to the pipe does not arise under the Building Code. Plaintiff argues, though, that NYCHA owed S.F. a duty under ordinary negligence principles. In particular, she contends, under Multiple Dwelling Law §78, NYCHA owed — and breached — a duty to “persons on its premises to maintain them in a reasonably safe condition.” (Juarez v. Wavecrest Mgmt. Team Ltd., 88 NY2d 628, 643 [1996] [quotation marks omitted].) This court concludes that plaintiff has raised a material issue of fact on this issue. To be sure, as NYCHA points out, the First Department has previously held that the landlord’s obligations under MDL §78 do not independently require them to insulate hot piping. (See Isaacs, 36 AD3d at 415; accord P.R. v. New York City Housing Auth., 155 AD3d 458 [1st Dept 2017]; White v. New York City Housing Auth., 139 AD3d 579, 579-580 [1st Dept 2016].) Here, though, plaintiff’s argument is not limited to the issue of insulation. Rather, plaintiff argues that NYCHA, as landlord, owed a duty under MDL §78 simply to operate the building’s heating system in a reasonable fashion, accounting both for the need for heat based on the exterior temperature and the risks to residents from hot pipes. And plaintiff submits an expert affidavit that concluded that the heating system was not being properly operated on the day on which S.F. was injured. (See NYSCEF No. 137.) Plaintiff’s expert noted that S.F. was injured on a day in May when the average exterior temperature was 53 degrees — thus decreasing the need for heating in the building. (See id. at 15.) He found that given the pressure of the building’s boiler, the temperature of the water in the piping would have been 235 degrees, that the surface of the pipe would have been close to that temperature, and that an object with a surface temperature of close to 235 degrees was “an unreasonable hazard and certain to burn skin badly on contact.” (Id. at 10.) And he opined that, contrary to the contentions of NYCHA’s expert, the piping was “much hotter than was necessary to heat the room — especially in mid-May when the infant was burned.” (Id. at 12.) This case thus presents materially different circumstances from Isaacs, P.R., and White. The temperature of the pipe here — close to 235 degrees — was far higher than that of the pipe in Isaacs (165 degrees), the pipe in P.R. (180 degrees), or the pipe in White (165 degrees).1 And the accidents in both P.R. and White occurred in January when the exterior temperature was approximately 16 degrees, not (as here) in mid-May with an exterior temperature in the 50s.2 In other words, in those cases the need for heat was substantially greater, yet the temperature of the in-apartment piping in the buildings’ heating systems was substantially less. Finally, defendant contends that because S.F. was burned on a pipe in her mother’s bedroom — after leaving her own room in the middle of the night and crawling into bed with her mother — no link connects S.F.’s injuries to any negligence on NYCHA’s part. This court does not agree. It is foreseeable that an individual could come into contact with a hot pipe located on the wall of a bedroom in plaintiff’s apartment, and suffer burns as a result. That the pipe in question was located in S.F.’s mother’s bedroom, rather than her own, is mere happenstance that did not break the chain of causation. In these circumstances, a material issue of fact requiring trial exists as to whether NYCHA is liable in negligence for S.F.’s injuries. Accordingly, it is ORDERED that defendant New York City Housing Authority’s motion for summary judgment is denied. Dated: November 8, 2019
